Case 4:06-cv-04094-HFB Document 30 Filed 02/11/09 Page 1 of 9 PageID #: 129
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF ARKANSAS
`TEXARKANA DIVISION
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`ALICE MARIE MILLER
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` PLAINTIFF
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`V.
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` Case No. 06-CV-4094
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`MILLER COUNTY, ARKANSAS
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`DEFENDANT
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`MEMORANDUM OPINION
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`Before the Court is a Motion for Summary Judgment filed by Defendant Miller County,
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`Arkansas. (Doc. 20). Plaintiff Alice Marie Miller has responded. (Doc. 27). The Court finds the
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`matter ripe for consideration.
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`BACKGROUND
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`Plaintiff, Alice Marie Miller, first worked as a correctional officer on the night shift at the
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`Miller County Detention Center. According to Ms. Miller, shortly after she began her employment,
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`she requested to be switched to the day shift because she was the primary caregiver to and custodian
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`of her eight-year-old grandson who resides with her, and the day shift allowed her to spend more
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`time with him. She was switched to the day shift and worked this shift for more than three years.
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`In July 2005, Ms. Miller began having serious health problems and took off work under the
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`provisions of the Family and Medical Leave Act (“FMLA”). According to Ms. Miller, her employer
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`advised her to complete the FMLA paperwork so that her day shift job would be protected while she
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`was on leave. Ms. Miller was due to return to work on August 30, 2005; however, she was unable
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`to return as expected because of additional medical restrictions. Ms. Miller was released to return
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`to work on September 6, 2005. However, on September 5, 2005, Ms. Miller was informed by a
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`supervisor that her position on the day shift had been filled and that she should report for work on
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`the night shift on September 7, 2005. Ms. Miller’s day shift position was filled on September 2,
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`2005, and her replacement was a Caucasian female.
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`Ms. Miller told her supervisors that she could not work the night shift because she had to care
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`for her grandson. Ms. Miller considered the statement that her position had been filled to be a
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`constructive discharge and did not return to work. Shortly thereafter, Ms. Miller was formally
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`terminated from her position because she failed to show up for work for three consecutive work days
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`after she was notified of the shift change.
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`Plaintiff Alice Marie Miller has sued Defendant Miller County, Arkansas (“County”),
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`alleging that she was transferred from the day shift to the night shift in violation of the Family and
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`Medical Leave Act of 1993, 29 U.S.C. § 2601. Her claim is based on the allegation that the County
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`failed to reinstate her into the same position she had prior to her utilization of family medical leave
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`time. Ms. Miller, who is African-American, further alleged that she was terminated from her
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`employment because of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
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`§ 2000(e).
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`This case is now before the Court on a Motion for Summary Judgment filed by the County.
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`(Doc. 20). The County argues that there are no genuine issues of material fact, and it is entitled to
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`judgment as a matter of law. The County urges the court to grant their motion and to dismiss Ms.
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`Miller’s Complaint in its entirety.
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`STANDARD OF REVIEW
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`Federal Rule of Civil Procedure 56(c) states that rendering summary judgment against a party
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`is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show
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`that there is no genuine issue as to any material fact and that the movant is entitled to judgment as
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`a matter of law.” When considering a summary judgment motion, the Court “must view the
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`evidence ‘in the light most favorable to the nonmoving party.’” Sappington v. Skyjack, Inc., 512
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`F.3d 440, 445 (8th Cir. 2008) (quoting F.D.I.C. v. Bell, 106 F.3d 258 (8th Cir. 1997)). Nevertheless,
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`the “‘nonmovant must present more than a scintilla of evidence and must advance specific facts to
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`create a genuine issue of material fact for trial.’” Id. (quoting F.D.I.C. v. Bell, 106 F.3d 258 (8th Cir.
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`1997)). There must be evidence on which the jury could reasonably find for the nonmovant.
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505 (1986).
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`A. The FMLA Claim
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`DISCUSSION
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`When an eligible employee returns from leave taken under the FMLA, the employer must
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`restore the employee to the same position or to “an equivalent position with equivalent employment
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`benefits, pay and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). The Code
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`of Federal Regulations provides the following:
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`[a]n equivalent position is one that is virtually identical to the employee’s former position
`in terms of pay, benefits, and working conditions, including privileges, prerequisites, and
`status. It must involve the same or substantially similar duties and responsibilities, which
`must entail substantially equivalent skill, effort, responsibility, and authority.
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`29 C.F.R. § 825.215(a); see also Cooper v. Olin Corp., Winchester Division, 246 F.3d 1083, 1092
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`(8th Cir. 2001). Ms. Miller claims that, upon returning to work from family medical leave, a transfer
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`from the day shift to “a more onerous” night shift, particularly under the circumstances of her case,
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`is not a reinstatement to the same or an equivalent position. The County disagrees.
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`In support of its argument, the County cites one case from the Fifth Circuit, Hunt v. Rapides
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`Healthcare Systems, LLC, 277 F.3d 757 (5th Cir. 2002). In this case, the plaintiff, a registered nurse
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`and single parent, returned from medical leave and was notified that her day shift position had been
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`filled. Id. at 760-61. She was given the choice of switching to a position on the night shift that had
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`the same benefits, responsibilities, and compensation as her day shift job or taking a part-time
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`position on the day shift. Id at 761. She chose to take the part-time day position because her family
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`situation required her to be at home at night. Id. The plaintiff claimed that her employer’s failure
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`to reinstate her to her former full-time day shift nursing position or an equivalent position violated
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`her substantive rights under the FMLA. Id. at 763.
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`The County cites the Hunt case in support of its position that it offered Ms. Miller an
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`equivalent position. However, the case actually supports Ms. Miller’s argument that a genuine issue
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`of material fact exists as to whether the offered night shift position was equivalent to Ms. Miller’s
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`previous day shift position for the purpose of the duty to reinstate under the FMLA. In Hunt, the
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`Fifth Circuit Court of Appeals found that genuine issues of disputed fact existed that were material
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`to determining whether her employer offered her a position equivalent to her prior job. Id. at 767.
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`The County cites Hunt for the premise that a “change in shift, without more, does not
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`constitute an adverse employment action under the anti-retaliation provision of the FMLA.” Id. at
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`771. The Fifth Circuit held that, in the context of retaliation claims, changes in shifts, without more,
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`do not constitute adverse employment actions. Id. Here, Ms. Miller’s claim is not a retaliation claim
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`but instead a failure to reinstate claim. Thus, the specific holding on which the County relies is
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`inapplicable to and distinguishable from the present case. See id. at 769. (indicating that the FMLA
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`provides two distinct causes of action, retaliation claims and deprivations of substantive rights
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`claims, to which courts apply different analyses).
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`The Court is not aware of any Eighth Circuit case that discusses whether a night shift
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`position is equivalent to a day shift position for the purpose of the duty to reinstate under the FMLA.
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`However, the Court notes that 29 C.F.R. section 825.215(e)(2) states that an “employee is ordinarily
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`entitled to return to the same shift or the same or an equivalent work schedule.”
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`The Court finds that disputed facts exist that are material to determining whether the County
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`offered Ms. Miller a position equivalent to her prior job. Furthermore, the County has not shown
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`that, as a matter of law, it offered Ms. Miller an equivalent position. Thus, the County is not entitled
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`to summary judgment on Ms. Miller’s failure to reinstate claim under the FMLA.
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`B. The Constructive Discharge Claim
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`Ms. Miller also claims that she was constructively discharged from her position when she
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`was assigned to a position on the night shift because she informed her supervisors that her family
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`situation prevented her from working the night shift hours. A constructive discharge occurs when
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`an employee quits because his or her employer deliberately created intolerable working conditions
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`with the intention of forcing the employee to quit. Summit v. S-B Power Tool, 121 F.3d 416, 421
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`(8th Cir. 1997). To prove a constructive discharge claim, a plaintiff must show the following: (1)
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`a reasonable person in his or her situation would find the working conditions intolerable; and (2) the
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`employer intended to force him or her to quit. Carpenter v. Con-Way Cent. Express, Inc., 481 F.3d
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`611, 616 (8th Cir. 2007). If a plaintiff cannot show that an employer consciously intended him or
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`her to quit, he or she can still prevail on a constructive discharge claim if the employer could have
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`reasonably foreseen that the employee would quit as a result of its actions. Wright v. Rolette County,
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`417 F.3d 879, 886 (8th Cir. 2005).
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`The questions here are (1) whether a reasonable person in Ms. Miller’s position would have
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`felt compelled to resign and (2) whether the County could have reasonably foreseen that she would
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`quit as a result of its reassigning her to the night shift. The facts here, taken in the light most
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`favorable to Ms. Miller, certainly indicate that the night shift hours would be inconvenient and
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`disfavored by Ms. Miller because of her desire to spend more time with her grandson. However, the
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`Court cannot conclude that a transfer to the night shift with the same pay and benefits is objectively
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`intolerable, such that a reasonable person would have felt that she had no other choice but to resign.
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`See Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 496 (8th Cir. 1996) (stating that a dissatisfaction
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`with a work assignment or “difficult or unpleasant working conditions are not so intolerable as to
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`compel a reasonable person to resign”). Moreover, only two days passed from the time the County
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`informed Ms. Miller on September 5, 2005, of her change to the night shift and when Ms. Miller first
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`failed to show up for the night shift on September 7. Ms. Miller never returned to work and was
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`terminated on September 13, 2005. “An employer who quits without giving [her] employer a
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`reasonable chance to work out a problem has not been constructively discharged.” Davis v. KARK-
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`TV, Inc., 421 F.3d 699, 706 (8th Cir. 2005) (quoting Tidwell, 93 F.3d at 494). There are no material
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`facts in dispute as to this claim, and the situation as alleged by Ms. Miller is insufficient as a matter
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`of law to establish that she was constructively discharged.
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`C. The Title VII Claim
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`Ms. Miller alleges that the County violated Title VII of the Civil Rights Act of 1964, 42
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`U.S.C. section 2000(e), because it utilized race as a factor in its employment decision to either
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`reassign Ms. Miller to the night shift or to terminate her employment after she failed to show up for
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`work following the reassignment. To establish a prima facie case of race discrimination, a plaintiff
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`must show that (1) he or she is the member of a protected group; (2) he or she was meeting the
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`employer’s legitimate expectations; (3) he or she was discharged; and (4) the discharge occurred in
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`circumstances that give rise to an inference of unlawful discrimination. Riser v. Target Corp., 458
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`Case 4:06-cv-04094-HFB Document 30 Filed 02/11/09 Page 7 of 9 PageID #: 135
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`F.3d 817, 819-20 (8th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
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`If the employee establishes a prima facie case, the employer must articulate a legitimate,
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`nondiscriminatory reason for the employee’s discharge. Id. at 820. If the employer meets this
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`burden, the employee must then demonstrate that the nondiscriminatory reason offered by the
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`employer was really a pretext for racial discrimination. Id.
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`Here, for purposes of the summary judgment motion, the County concedes that Ms. Miller
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`is a member of a protected group and that she was discharged. However, the County argues that Ms.
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`Miller was not meeting its legitimate business expectations and that her discharge occurred in
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`circumstances that do not give rise to an inference of unlawful discrimination. The County’s
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`argument is that Ms. Miller was not meeting its legitimate business expectations when she failed to
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`show up for one week of work after she was scheduled to return to work on the night shift.
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`However, the September 13, 2005 letter to Ms. Miller from her supervisors, Ricky Hunter and Sue
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`Nichols, implies that the reason for Ms. Miller’s termination was because she failed to call and failed
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`to show up for three consecutive work days, not for an entire week. There is nothing in the record
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`that indicates that Ms. Miller was not meeting her employer’s expectations up until the day she was
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`assigned to the night shift. Therefore, the Court finds that Ms. Miller was meeting the County’s
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`legitimate expectations, which is the second element of her prima facie case.
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`The Court now analyzes the County’s argument that Ms. Miller cannot show that her
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`discharge occurred in circumstances that give rise to an inference of unlawful discrimination. Here,
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`This letter is attached to the Joint Affidavit of Warden Janice Nicholson, Lieutenant Sue
`Nichols, and Officer Kevin Hampton. (Doc. 20-2).
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`Ms. Miller asserts that she was discharged and replaced by a Caucasian woman with less seniority2
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`than Ms. Miller and that two of the four people involved in the decision to terminate her were
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`Caucasians. Thus, Ms. Miller has met her burden of proving that her discharge occurred in
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`circumstances that give rise to an inference of unlawful discrimination, which is the fourth element
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`of her prima facie case. The Court therefore finds that Ms. Miller has established a prima facie case
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`of race discrimination.
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`The burden now shifts to the County to articulate a legitimate, nondiscriminatory reason for
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`Ms. Miller’s discharge. The County states that Ms. Miller was discharged because she failed to call
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`and to show up for work for at least three consecutive work days. Thus, the burden is shifted back
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`to Ms. Miller to show that this reason is really a pretext for racial discrimination. An employee may
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`show pretext either by directly showing that his or her employer was more likely motivated by a
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`discriminatory reason or indirectly by showing that his or her employer’s explanation is unworthy
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`of credence. Rose-Maston v. NME Hospitals, Inc., 133 F.3d 1104, 1108 (8th Cir. 1998). Ms. Miller
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`does not dispute that she failed to show up for work and failed to call for at least three consecutive
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`work days. Furthermore, she points to no specific factual evidence that shows that the County was
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`more motivated by discriminatory intent than the fact that she failed to call and to show up for work.
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`Ms. Miller has offered nothing to show that the County’s nondiscriminatory reason for terminating
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`her was really a pretext for racial discrimination. Thus, there are no genuine issues of fact as to
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`Ms. Miller states that the Caucasian woman who replaced her had less seniority than Ms.
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`Miller. However, this conclusory statement by Ms. Miller is not supported by anything else in the
`record. Nevertheless, the Court, considering the facts in a light most favorable to Ms. Miller, will
`assume that Ms. Miller indeed has more seniority than the woman who replaced her.
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`whether the County intentionally discriminated against Ms. Miller because of her race, and the
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`County is entitled to summary judgment on this claim as a matter of law.
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`CONCLUSION
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`Upon consideration, the Court finds that the Motion for Summary Judgment filed by Miller
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`County, Arkansas, should be and hereby is GRANTED IN PART AND DENIED IN PART. Ms.
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`Miller’s FMLA claim will proceed to trial as scheduled, and her other claims are hereby dismissed
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`with prejudice.
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`IT IS SO ORDERED, this 11th day of February, 2009.
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` /s/ Harry F. Barnes
`Hon. Harry F. Barnes
`United States District Judge
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